Commonwealth held to account in penalties over burial of Mungo Man and Mungo Lady

The NSW government has warned that the commonwealth may have to prosecute Indigenous groups that are believed to have buried Mungo Man and Mungo Lady without authorisation.

The 40,000-year-old skeletal remains of Mungo Man were removed from a secure facility last week.

The NSW government has warned that the commonwealth may have to decide whether to criminally prosecute the Indigenous groups who are believed to have taken and buried the ancient Mungo Man and Mungo Lady ­remains without proper authorisation.

The 40,000-year-old skeletal remains, which represent some of the oldest human remains ever recovered outside Africa, were removed from a secure facility last week and are believed to have been buried at an unknown location within the Willandra Lakes World Heritage Area in outback NSW.

The final fate of the remains has been a subject of debate for decades and has caused a division within the three Indigenous groups with links to the area.

The Aboriginal Advisory Group established to represent the three traditional tribal groups had decided in favour of reburial and had been scheduled to go ahead with the plan last Tuesday, but federal and state authorities had decided to delay the burial for at least a fortnight after a breakaway group of Indigenous stakeholders opposed to the plan lodged an eleventh-hour objection.

The excavation of the remains of the Mungo Man in 1974. Picture: AP

The remains were taken by ­as-yet unknown Indigenous representatives on Tuesday and were buried in defiance of the stay, sparking cries of outrage from the dissenting Indigenous groups and prompting the federal government to write to NSW authorities to demand an explanation.

The Australian has since learned that the NSW Department of Planning and Environment has written back to the secretary of the Department of Agriculture, Water and Environment, noting that an investigation into how the remains were accessed was under way.

The letter also notes that the question of whether the taking of the remains and their burial constitutes a breach of the Environment Protection and Biodiversity Conservation Act was a matter for the commonwealth.

“In any investigation, we urge you to consider the cultural sensitivities related to this matter,” the letter says.

Penalties under the EPBC Act can include fines of up to $550,000 for an individual and $5.5m for a corporate body.

The letter also notes that the commonwealth government approval for the reburial, granted by then-environment minister Sussan Ley this year, expressly requires any reburial under that approval to be carried out “in ­accordance with the wishes, rights and interests of the local Aboriginal community as represented by the AAG”.

The Albanese government is yet to announce a new federal environment minister, but incoming Indigenous Australians minister Linda Burney has ­already sought an explanation from NSW given they had control of the remains at the time they were taken.

“We have just written to the NSW department asking them for very pointed details about what actually took place,” she said last week.

The reply from the NSW ­department also confirms that the skeletal fragments and ­remains from 106 other ancient people recovered from the region remain safe and secure under the department’s control.

Those remains were originally due to be buried at the same time as Mungo Man and Mungo Lady, but were not taken when the other remains were accessed.

The discovery of the Mungo remains in the 1970s and 1980s ­rewrote the history of humanity and paved the way for the region to be declared a World Heritage area. Mungo Man represents one of the oldest known examples of a ritual cremation.